brexit-article-50

Recommendations

Info

BREXIT'AND'ART'50'TEU:'A'CONSTITUTIONALIST'READING''''''''''''''''''''P'EECKHOUT'AND'E'FRANTZIOU' of Justice has determined that an association agreement empowers the EU to guarantee commitments towards non-member countries in all the fields covered by the Treaties. 111 The competence to conclude association agreements is, in substantive terms, the broadest external competence for which the EU Treaties provide. There would therefore seem to be no compelling legal reasons for requiring the United Kingdom to withdraw from the EU first, before negotiating a new agreement on its future relationship. A further point to note is that, even if most association agreements are mixed agreements, it is doubtful whether the determination of the future relationship requires mixity. The justification for mixed agreements reflects the cardinal EU constitutional principle of limited and conferred powers. As clearly stated in Article 5(2) TEU, "competences not conferred upon the Union in the Treaties remain with the Member States". Withdrawal, however, is a special case. In all matters covered by the Treaties, the EU Member States have conferred their powers to regulate their relationship with the United Kingdom to the EU, simply by virtue of the UK's current membership. Take immigration as an example. The EU's competences to regulate immigration of third-country nationals are strictly limited, leaving the substance of immigration policies to national competence. However, as far as UK citizens are concerned, there is no such national competence, because UK citizens are EU citizens benefitting from free movement. If anything, any future agreement limiting free movement would effectively return competences to the Member States, rather than interfering with the exercise of an existing competence. Surely, it is fully within the EU's competence to act so as to return national competences. Perhaps this is also the implicit reason why Article 50 does not subject the withdrawal agreement to approval by the individual Member States. 112 111 Case 12/86, Demirel [1987] ECR 3719, para 9 (at the time the Court of course referred to the EEC and to the EEC Treaty, but it can be assumed that today an association may cover policies in both the TEU and the TFEU). 112 See, generally, the ‘implied powers’ doctrine: Case 22/70, Commission of the European Communities v Council of the European Communities [1971] ECR 263. 25
BREXIT'AND'ART'50'TEU:'A'CONSTITUTIONALIST'READING''''''''''''''''''''P'EECKHOUT'AND'E'FRANTZIOU' IV. The Miller litigation: Government or Parliament? A Perspective from EU Constitutional Law Article 50(1) provides that "any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements." Article 50(2) adds that the "Member State which decides to withdraw shall notify the European Council of its intention." As discussed earlier, the decision to withdraw is clearly a unilateral one, on which Article 50 places no conditions other than that it has to be taken in accordance with the withdrawing state's own constitutional requirements. This qualification calls for some immediate comments. First, it is in line with the advocated constitutionalist interpretation of Article 50, in that it makes express reference to respect for domestic constitutional rules. Other international treaties, conventions and agreements which contain withdrawal clauses do not make such reference. 113 They are based on a classical international-law paradigm which treats states, in legal terms, as unitary actors whose domestic constitutional arrangements are not a matter of international law. Second, the reference to constitutional requirements replicates such references in other Treaty provisions, for example those on Treaty amendments (Article 48 TEU), on accessions (Article 49 TEU), and on the EU's accession to the ECHR (Article 218(8) TFEU). In the United Kingdom, amendments and accessions require parliamentary legislation; 114 the former may in addition require a referendum. 115 Third, as noted above, the reference to the withdrawing state's constitutional requirements is in the TEU, and is therefore an EU law norm. Obviously, the precise nature of this requirement as well as its enforceability are open to debate. 116 As noted above, a series of amendments were proposed to codify what the ‘constitutional requirements’ might be. But given that the matter is at present intensely litigated in the UK, up to the highest level, it seems clear that the United Kingdom will have clearly determined what those requirements are, and one assumes will respect them. 113 R L Helfer, ‘Terminating Treaties’ in The Oxford Guide to Treaties (OUP 2012) 634, 641-3: Approximately 60 per cent of treaties surveyed contain an exit clause but their terms vary significantly depending on their subject: e.g. bilateral investment treaties often contain a ‘continuation of effects’ clause; arms treaties sometimes require a justification of withdrawal etc. 114 See, for example, the EU Act 2008 amending the ECA 1972 by incorporating the Lisbon Treaty into UK Law. 115 European Union Act 2011, s.6. 116 See, on this point, A Von Bogdandy and S Schill, ‘Overcoming absolute primacy: respect for national identity under the Lisbon Treaty’ (2011) 48 CMLRev 1417; François-Xavier Millet, ‘The Respect for National Constitutional Identity in the European Legal Space: An Approach to Federalism as Constitutionalism’ in L Azoulai (ed), The Question of Competence in the European Union (OUP 2014). 26
Page 1 and 2: LONDON’S GLOBAL UNIVERSITY BREXIT
Page 3 and 4: Brexit and Article 50 TEU: A Consti
Page 5 and 6: BREXIT'AND'ART'50'TEU:'A'CONSTITUTI
Page 27: BREXIT'AND'ART'50'TEU:'A'CONSTITUTI
Page 47: Working Paper Series UCL European I

brexit-article-50

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?